Citation NR: 9733911
Decision Date: 10/03/97 Archive Date: 10/09/97
DOCKET NO. 93-25 663 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to an increased (compensable) disability
evaluation for service-connected residuals of shell fragment
wounds of the left buttock.
2. Entitlement to an increased (compensable) disability
evaluation for service-connected residuals of shell fragment
wounds of the right buttock.
3. Entitlement to service connection for bilateral calcaneal
spurs.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Alan S. Peevy, Counsel
INTRODUCTION
The veteran had active military service from December 1942 to
June 1946.
This case is before the Board of Veterans’ Appeals (Board) on
appeal from an August 1992 rating decision by the
Albuquerque, New Mexico, Regional Office (RO). This case was
previously before the Board and was remanded to the RO in
October 1995. The detailed procedural history of this case
was set forth in the October 1995 remand and is incorporated
herein by reference.
The veteran is represented by Paralyzed Veterans of America,
Inc.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that compensable
ratings are warranted for service-connected residuals of
shell fragment wounds of the buttocks. The veteran’s
representative directs the Board’s attention to radiological
findings of metallic bodies in the left buttocks. It is
maintained that this finding is evidence of residuals of
shell fragment wounds and that by regulation as well as under
the jurisprudence of the United States Court of Veterans
Appeals (Court), such a finding is evidence of at lease
moderate disability so as to warrant a 20 percent rating
under Diagnostic Code 5317.
It is also asserted that the veteran has developed calcaneal
spurs as a result of his service-connected wounds of the
lower extremities. The veteran’s representative maintains
that the development of these spurs cannot be disassociated
from the wounds to the leg and foot. The Board is requested
to consider a secondary relationship under 38 C.F.R. § 3.310
(1996).
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a 20 percent evaluation is
warranted for the veteran’s service-connected residuals of
shell fragment wounds of the left buttock. It is the further
decision of the Board that the preponderance of the evidence
is against entitlement to an increased (compensable) rating
for service-connected residuals of shell fragment wounds of
the right buttock. It is also the decision of the Board that
the veteran’s claim of entitlement to service connection for
bilateral calcaneal spurs is not well-grounded.
FINDINGS OF FACT
1. The veteran’s service-connected residuals of shell
fragment wounds of the left buttock are manifested by x-ray
evidence of retained metallic foreign bodies, but no
relatively large scars or indications of moderate loss of
deep fascia, moderate loss of muscle substance, or moderate
loss of normal firm resistance.
2. The veteran’s service-connected residuals of shell
fragment wounds of the right buttock are manifested by
clinical evidence of small pinpoints, but with no
radiological evidence of retained metallic bodies and no
significant impairment of function.
3. There is no competent evidence of a nexus between
bilateral calcaneal spurs and any inservice disease or
injury, nor is there competent evidence of a nexus between
bilateral calcaneal spurs and any service-connected
disability.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating for shell fragment
wounds of the left buttock have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.56
and Code 5317 (1996).
2. The criteria for a compensable rating for shell fragment
wounds of the right buttock have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.56
and Code 5317 (1996).
3. The veteran's claim of entitlement to service connection
for bilateral calcaneal spurs is not well-grounded. 38
U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Ratings for Shell Fragment Wounds of the Left
Buttock
and the Right Buttock.
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. § Part 4 (1996). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (1996).
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet.App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet.App. 55 (1994).
By rating decision in August 1992, service connection was
established for residuals of shell fragment wounds of the
left buttock, and a noncompensable rating was assigned. By
way of history, the record reveals that the veteran suffered
shell fragment wounds to various parts of the body during a
combat related incident in World War II when a grenade
exploded.
The Board noted here that its October 1995 remand included
directions to the RO to schedule special VA examinations to
ascertain the nature and severity of the disabilities at
issue. The record shows that the RO did schedule such
examination, but the veteran failed to report. Under the
circumstances, the Board finds that the duty to assist the
veteran has been met, and it therefore proceeds with its
appellate review based on the evidence of record.
On VA examination in December 1990, the veteran reported that
he had difficulty with his hips. The examiner commented that
“by this, he means his buttock.” X-rays of the hips were
accomplished and were interpreted as showing osteoarthritis.
However, radiological study of the buttocks was not
accomplished in conjunction with this examination. The
veteran underwent another VA examination in June 1991, but it
does not appear that clinical or radiological examination of
the buttocks was accomplished at that time.
In June 1992, another VA examination was conducted. The
examiner reported little tiny pinpoint areas over the
buttocks “which may or may not be shrapnel wounds of entry.”
The examiner was unable to identify any definite scars.
Special x-ray examination of the buttocks was conducted.
Several punctate metallic densities were noted over the
region of the left buttock. No findings related to the right
buttock were reported.
Under Diagnostic Code 5317 for Muscle Group XVII, a pelvic
girdle muscle, including the gluteal muscles, slight
disability warrants a noncompensable rating. The provisions
of 38 C.F.R. § 4.56(a) (1996) describe slight (insignificant)
disability as caused by simple wound of muscle without
debridement, infection or effects of laceration and objective
findings of minimum scar; slight, if any, evidence of fascial
defect or of atrophy or of impaired tonus and no significant
impairment of function and no retained metallic fragments.
The next higher rating of 20 percent is for application for
moderate disability of muscles. Under 38 C.F.R. § 4.56(b)
(1996), through and through or deep penetrating wounds of
relatively short track by single bullet or small shell or
shrapnel fragment are to be considered as of at least
moderate degree. A 40 percent rating under Code 5317 is for
application when there is moderately severe disability which
is described under 38 C.F.R. § 4.56(c) (1996) as evidenced by
through and through or deep penetrating wound by high
velocity missile of small size or large missile of low
velocity, with debridement or with prolonged infection or
with sloughing of soft parts, intermuscular cicatrization
with objective findings of (among other things) entrance and
(if present) exit scars relatively large and so situated as
to indicate track of missile through important muscle groups.
Objective findings associated with moderately severe
disability of the muscles include relatively large scars or
indications of moderate loss of deep fascia, moderate loss of
muscle substance, moderate loss of normal firm resistance.
38 C.F.R. § 4.56 (c) (1996).
In the present case, there is evidence of retained metallic
foreign bodies in the left buttock as shown on VA
radiological examination in June 1992. This evidence
suggests that there was deep penetration of Muscle Group XVII
by small fragments and is compatible with a moderate muscle
injury pursuant to 38 C.F.R. § 4.56 (1996). In view of the
veteran’s complaints and the objective evidence of retained
metallic foreign bodies, the Board therefore concludes that a
20 percent rating is warranted for the service-connected
residuals of shell fragment wounds of the left buttock. 38
C.F.R. § 4.56, Code 5317 (1996).
However, the clear preponderance of the evidence is against
assignment of a rating in excess of 20 percent for the
veteran’s left buttock disability. There is no clear
evidence of scars, loss of deep fascia or loss of muscle
substance, normal firm resistance of the muscles, loss of
strength or endurance so as to establish moderately severe
disability as required for the next higher rating of 40
percent. 38 C.F.R. § 4.56, Code 5317 (1996).
With regard to the right buttock, the Board believes that the
preponderance of the evidence is against entitlement to a
compensable rating. While objective clinical examination in
June 1992 resulted in a comment by the examiner regarding
small pinpoint areas over the buttocks, x-ray examination
revealed no evidence of retained foreign bodies as was the
case with the left buttock. Moreover, there is no evidence
of significant impairment of function. Accordingly, the
Board finds that the veteran’s right buttock residuals result
in no more than slight (insignificant) disability and a
noncompensable rating is therefore warranted. 38 C.F.R.
§ 4.56, Code 5317 (1996).
II. Service Connection for Bilateral Calcaneal Spurs.
The final issue before the Board involves a claim for
entitlement to service connection. Applicable law provides
that service connection will be granted if it is shown that
the veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in active military service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b) (1996). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1996). Further, disability which is
proximately due to or the result of a service-connected
disease or injury shall be service connected. 38 C.F.R.
§ 3.310 (1996).
However, it should be noted at the outset that statutory law
as enacted by the Congress charges a claimant for Department
of Veterans Affairs (VA) benefits with the initial burden of
presenting evidence of a well-grounded claim. 38 U.S.C.A.
§ 5107(a) (West 1991). A well-grounded claim has been
defined by the Court as "a plausible claim, one which is
meritorious on its own or capable of substantiation." Murphy
v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the
determinative issue involves a medical diagnosis, competent
medical evidence to the effect that the claim is "plausible"
or "possible" is required. Grottveit v. Brown, 5 Vet.App.
91, 92-93 (1993). A claimant therefore cannot meet this
burden merely by presenting lay testimony and/or lay
statements because lay persons are not competent to offer
medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492
(1992). Consequently, lay assertions of medical causation
cannot constitute evidence to render a claim well-grounded
under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable
evidence is submitted to support a claim, the claim cannot be
well-grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611
(1992).
The Court has further indicated that in order for a service
connection claim to be well-grounded, there must be competent
evidence: i) of current disability (a medical diagnosis);
ii) of incurrence or aggravation of a disease or injury in
service (lay or medical evidence), and; iii) of a nexus
between the inservice injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498, 506 (1995). The Board emphasizes, however, that the
doctrine of reasonable doubt does not ease the veteran’s
initial burden of submitting a well-grounded claim.
38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski,
1 Vet.App. 49, 55 (1990).
The Board observes here that service connection has already
been established for the following: residuals of gunshot
wound to Muscle Group XII with fracture of the distal third
of the tibia and fibula with impairment of the ankle, right,
currently rated as 30 percent disabling; shell fragment wound
of the left thigh Muscle Group XII, currently rated as 30
percent disabling; shell fragment wounds of the right thigh,
currently rated as 10 percent disabling; shell fragment wound
of the right hand, currently rated as 10 percent disabling;
malaria, currently rated noncompensable; shell fragment wound
of the right elbow, currently rated noncompensable; shell
fragment wounds of the right buttock, currently rated
noncompensable; and, shell fragment wounds of the left
buttock.
The veteran and his representative contend that the veteran’s
bilateral calcaneal spurs are related to his military service
or to a service-connected disability. To begin with, the
record does include medical evidence that the veteran does
currently suffer from bilateral calcaneal spurs. Clinical
records show pertinent complaints and radiological study in
June 1991 revealed a plantar calcaneal spur on the left and
posterior calcaneal spur on the right. Accordingly, the
Caluza requirement of a medical diagnosis of current
disability has been met.
However, there is no competent evidence of any link between
the veteran’s bilateral calcaneal spurs and any disease or
injury in service or to any service-connected disability. In
support of the veteran’s claim, the veteran’s represented has
submitted copies of certain pages from medical literature
regarding heel pain and plantar calcaneal spurs. However,
this literature must be viewed as speculative and
insufficient to establish the necessary nexus. This evidence
is very general in nature and does not include any medical
opinion specifically linking the veteran’s current disability
and his service, or linking his current disability to any
service-connected disability. As noted earlier, the veteran
failed to report for special VA examination scheduled
pursuant to the Board’s October 1995 remand for, among other
things, obtaining an opinion as to the relationship, if any,
between the veteran’s calcaneal spurs and his service-
connected disabilities.
The Board recognizes the various contentions advanced by the
veteran and his representative. However, while the veteran
and his representative are free to offer their opinions and
comments regarding the cause of the veteran’s spurs, it has
not been shown that they are competent to offer such medical
opinions. Espiritu. Without competent evidence of such a
link, the veteran’s claim of entitlement to service
connection for bilateral calcaneal spurs must be viewed as
not well-grounded.
ORDER
Entitlement to a 20 percent rating for service-connected
shell fragment wounds of the left buttock is warranted. To
this extent, the appeal is granted.
Entitlement to an increased (compensable) rating for service-
connected shell fragment wounds of the right buttock is not
warranted. The veteran’s claim of entitlement to service
connection for bilateral calcaneal spurs is not well-
grounded. To this extent, the appeal is denied.
E. M. KRENZER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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